England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		& CO/3730/2014 Royal Courts of Justice Strand, London, WC2A 2LL
		18 December 2014

Mr Justice Supperstone :

1. In CO/3730/2014 (which has been referred to as "Claim 2") the Claimants challenge the Defendant's decision made on 27 June 2014 to grant full planning permission for application reference number A/14/79273 to erect 39 dwellings and associated access and landscaping on land to the south of 43/44 Herons Wharf, Appley Bridge, Wigan ("the site").
2. The sole remaining issue in Claim 2 is whether the screening opinion produced by the Defendant on 7 May 2014 that the proposal did not comprise EIA development for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 Regulations") was flawed.
3. In that screening opinion Mr Foster, the Defendant's Principal Planning Officer, noted that it is agreed that the proposed development falls under Schedule 2 due to its size and nature and he then proceeded to analyse the environmental effects under the criteria laid out in Schedule 3. He stated under "Characteristics of development" in a section on "pollution and nuisances":

"The history of the site could potentially give rise to issues surrounding ground contamination. The site has been previously remediated as part of application A/00/52569 and a detailed site investigation with full remediation strategy has been submitted. Subsequently, further assessments of the site, including Phase I and Phase II studies, and additional assessment in relation to potential anthrax contamination have been carried out. This assessment remains ongoing at the present time; however, there is no information to suggest that this threat is significant and not capable of appropriate remediation. The Environment Agency and Public Health England have been in receipt of the assessments, and whilst the EA require further confirmation, this is capable of resolution through the topic specific assessment presently being conducted. Similarly, present expert analysis does not suggest significant contamination risks in relation to groundwater and the adjacent canal."

4. Under "Characteristics of the potential impact" Mr Foster stated, inter alia, that the magnitude and complexity of the impact is likely to be minor; and whilst there may be some environmental impacts from the development these will be localised and are capable of being adequately mitigated.
5. Mr Foster concluded, so far as is material, as follows:

"Having regard to the previous site usage, specific consideration has been given to potential site contamination issues and the effects of site preparation and final development on the future occupiers of the site and the surrounding environment and built up areas. However, any identified contamination would not of itself indicate the need for environmental impact assessment.

Any such adverse impacts are likely to be localised and capable of adequate mitigation. Assessments already undertaken indicate that this aspect can be appropriately dealt with through the submission of detailed, specialist reports.

Furthermore, there are no significant inter-related impacts which would require a wider reaching analysis of the contamination issue.

It is therefore considered that the screening opinion of the local planning authority is that this proposal does not comprise EIA development."

6. This approach was reported to the Committee in the Officer's report for the meeting on 24 June 2014. The report included the following on land contamination:

"A specific issue has been raised by an objector that anthrax spores may be present on the site and have the potential to cause serious harm to health. The intrusive site investigations did not find any evidence to support this claim. As a result of this claim the Council commissioned an independent assessment of the history of the site to examine the likelihood of anthrax being present. Professor Sally Sheard of the University of Liverpool, supported by Public Health England … concluded that the risk of anthrax being located below the site in large enough quantities to cause harm to human health is minimal given the inspection regime at the former factory from 1885. No anthrax was discovered in any of the most recent soil samples submitted for analysis and Public Health England conclude risk to construction workers and local residents is very low.

It is therefore evident that the risk of anthrax being located below the site in large enough quantities to cause harm to human health is minimal.

The main contaminant found on the site is asbestos, with one hot spot of arsenic also being identified. As part of the application a full remediation strategy has been submitted that outlines measures to protect the future occupiers and existing residents. These measures are the removal, where necessary, of the asbestos and arsenic contaminated soil followed by the introduction of a 600-750mm capping layer that includes a 150mm anti-dig layer. As part of the previous application on the site a soil cap of 300mm was put in place across the site and some limited remediation was carried out appropriate for its then use as open space.

A condition will be included on the decision notice to ensure that the works are being carried out in accordance with the remediation strategy and it is therefore considered that the proposal complies with the requirements of Policy 17 of the Core Strategy and Policy EV1A of the Replacement Wigan UDP."

7. The report noted that the Environment Agency had no objections subject to conditions being included on the decision notice ensuring that the remediation strategy is carried out.
8. The Committee resolved to grant permission, subject to condition 2 which specified that

"The development shall be carried out in full accordance with the approved Remediation Strategy."

9. Mr Matthew Dale-Harris, for the Claimants, submits that the decision to grant permission was unlawful because of the continuing failure of the Defendant to take into account and pay heed to the wealth of environmental information which suggests that the contamination of the site is sufficiently serious and poorly understood to necessitate that an environmental impact assessment is undertaken before the grant of permission. This is exemplified, he contends, by errors within the text of the screening opinion and led to an unlawful and perverse conclusion that the development was not EIA development.
10. In considering this challenge I have had regard to the following principles which are not in issue:

i) The test to be applied is:

"Is this project likely to have significant effects on the environment?"

(See Loader v Secretary of State for Communities and Local Government [2012] EWCA Civ 869 at para 43, per Pill LJ).

ii) The criteria to be applied are set out in the Regulations and judgment is to be exercised by planning authorities focusing on the circumstances of the particular case (see Loader at para 43).

iii) The weight to be attached to material considerations is a matter of planning judgment within the exclusive jurisdiction of the decision maker (Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759, per Lord Hoffmann at 780).

iv) Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion (Jones v Mansfield District Council [2004] Env LR 21 at para 17, per Dyson LJ; and see para 38). Also see R (Bowen-West) v Secretary of State for Communities and Local Government [2010] EWCA Civ 321 at para 33 where Laws LJ stated: "We are dealing with what is quintessentially a matter of judgment").

v) In determining the likelihood of a development having significant environmental effects it is open to the decision maker to have regard to proposed remedial measures (Gillespie v First Secretary of State [2003] EWCA Civ 30). In Jones Dyson LJ, having referred to Gillespie, stated at para 39:

"…the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case."

vi) The court should approach a challenge to the decision of issues such as these on Wednesbury principles (Loader at para 31).

vii) The number of cases of Schedule 2 development which are EIA developments will be "a very small proportion of the total number of Schedule 2 developments" (see para 34 of Circular 02/99 Environmental Impact Assessment).

11. Mr Dale-Harris makes a number of points of criticism of the screening opinion. First, he contends that the approach of the officer started from the wrong position by asserting that there was no evidence of a significant threat. There were, he contends, extensive issues relating to ground contamination which posed "a moderate risk to human health" (in the words of the Phase II report"). Second, the officer asserts that impacts are "capable of adequate mitigation" but he provides no analysis of the uncertainties and contingencies that were built into that process in breach of his duty to do so under Regulation 4(7). Further, at the time of screening there was uncertainty as to how effective the remediation would be because the sources of contamination and the extent were not known. Here the remediation proposals were complex and as mitigation was central to the reasons for his screening opinion it was necessary for the officer to record his reasons for accepting it with clarity, which he did not do.
12. In my view Mr Jonathan Easton, for the Defendant, fairly observes in his response to these points that they depend upon an examination of the minutiae of the Screening Opinion and a semantic analysis of the language used. In any event none of the criticisms are valid. It is clear from the screening opinion, read as a whole, that Mr Foster paid proper regard to the land contamination issues. He referred to the earlier detailed studies of the site and to the consultation responses from the Environment Agency and Public Health England; and he concluded that "any such adverse impacts are likely to be localised and capable of adequate mitigation". The passages from the screening opinion that I have referred to (see para 3-5 above) make clear that the officer was of the view that mitigation was satisfactorily addressed in the assessments that had already been undertaken. I accept Mr Easton's submission, and that of Mr Sasha White QC on behalf of the Interested Party, that there is nothing overly complex about the remediation proposals for this small development. It involves in essence existing topsoil to be removed, the land to be capped and the topsoil to be re-laid having been checked for contamination. None of the statutory consultees expressed any concerns about the ability effectively to remediate the site.
13. Mr Foster was very familiar with the site and there is no suggestion that he lacked the appropriate experience or qualifications to produce the screening opinion. By 7 May 2014 there was a very substantial body of technical and other documentation in relation to the environmental impacts of the scheme before the local authority which included the Phase I and II Site Appraisals, the responses from consultees and most importantly the Remediation Method Statement prepared for the Interested Party by Mr Matthew Tomkins dated March 2014. That Statement, together with its appendices is in the Trial Bundle at pages 555-664. The list of reports used in preparation of the Statement include the Phase I and Phase II Site Appraisals and the Addendum Letter Report relating to the most recent investigation at the site dated 11 March 2014. In section 4 of the Statement headed "Remedial Strategy" Mr Tomkins identifies the works considered necessary to commence the development of the site in accordance with the requirements of the Defendant and the Environment Agency. He sets out at para 4.1.1 the "Remedial Strategy for Human Health (Soil Contamination)" which in relation to "Made Ground" states:

"The made ground is contaminated with PAHs, lead and locally asbestos. It is considered that this material poses a moderate (locally significant) risk to end users and remediation is required to protect them. It is considered that the most appropriate remedial solution for the majority of the site is a the placement of a 600mm soil capping layer in all new private gardens and areas of soft landscaping. The capping layer should be increased to 750mm and include a 150mm-thick anti-dig layer where asbestos has been identified due to perceived greater risk (see Remediation Plan in Appendix G for affected plots). Depending on the proposed finished levels, at least some of the asbestos contaminated made ground may require removal to allow for the cap to be placed. Should this be the case, then measures will have to be put in place… to suppress any dust generated (e.g. damping down)."

Section 5 ("Further Works") states that

"It is considered that no further works are necessary to assess the risk to human health, controlled waters and construction materials".

14. In my view it is clear that specific attention was paid to the potential contamination of the site and Mr Foster came to an overall view in the Screening Opinion that any environmental effects will not be significant and could be successfully mitigated.
15. I am satisfied that in producing the screening opinion the Defendant applied the correct test and had proper regard to material information, and that the conclusion that was reached that the development was not EIA development was not arguably perverse. Adequate reasons have, in my view, been given for the screening opinion.
16. In my judgment this ground of challenge is not arguable, and accordingly permission is refused, and Claim 2 is dismissed.
17. On 12 December 2014 I refused permission to the Claimants to challenge the decision which is the subject of Claim 2 on the additional ground (referred to as "Ground 2 of Claim 2") put forward, namely that the grant of permission was unlawful in that it was founded on sampling evidence that was materially false.
18. Mr Dale-Harris accepts that in the event that Claim 2 is dismissed (which is now the case), Claim 1 (CO/1407/2014) is academic, and should also be dismissed.
19. Finally I turn to the question of costs in relation to Claims 1 and 2. There will be a hearing to determine costs (including any issue in relation to the Protective Costs Order made by Mitting J on 24 May 2014 that I extended on 9 September 2014), unless the parties agree that the matter can be determined on paper. If there is to be a hearing I direct that the parties lodge skeleton arguments at least 7 days in advance of the hearing date; if the matter is to be determined on paper, I will give further directions.